CONLEY, P. J.
The defendant, Lyle Clark, was charged in the information with the crime of "drunk driving with bodily injury” in violation of section 23101 of the California Vehicle Code, in that on or about the 22d day of April, 1961, in the County of Merced, he did "... wilfully and unlawfully, while under the influence of intoxicating liquor drive a motor vehicle upon a public highway and while driving said vehicle did an act forbidden by law, and neglected a duty imposed by law in driving said vehicle, which act and neglect proximately caused bodily injury to Carolyn Geisbrecht.”
The first trial of the defendant resulted in a jury disagreement. On the second trial, which lasted five days, the jury brought in a verdict of guilty. The defendant thereafter moved for a new trial, which was denied, and the court granted him probation for the term of three years, the first six months to be served in the county jail.
The appeal is ". . . from the judgment on verdict of conviction entered thereon . . . and from the order denying new trial. ...” Although there is actually no final judgment of conviction in the case, section 1237, subdivision 1, of the Penal Code provides that an order granting probation is deemed to be a final judgment for the purpose of appeal, and we so consider it.
In order to make clear the circumstances applying to the claim of error, it is necessary briefly to review the evidence in the ease.
On April 22, 1961, the defendant was driving a 1953 Studebaker automobile at the rate of about 30 miles per hour on Winton Way near Winton, California. He crossed the Santa Pe railroad tracks, made a left turn onto Santa Pe Avenue and drove parallel to the tracks in a general northwesterly direction on that avenue. A 1951 G.M.C. pickup truck was approaching Clark from the opposite direction. It was driven by Larry Mininger, a teenager, who had three other young people riding in his cab, including Carolyn Geisbrecht. The pickup truck was in its righthand lane, going about 30 miles an hour. Defendant’s Studebaker crossed over the white line and hit the left front portion of the truck. The impact occurred about 3 feet from the center line of that road. The tire marks from defendant’s car started in his own right lane, swerved into his left lane, and turned back into his right lane. Carolyn Geisbrecht, who was in the pickup, was injured. The defendant himself received a cut on the head and suffered a brain concussion resulting in retrograde amnesia.
After the close of the first trial, defendant claimed that increased memory returned to him and that he could recall a second car approaching him in his own right lane just before the collision. He said that he swerved to his left to miss this third car and came into collision with the Mininger motor vehicle; the defendant did not mention this alleged fact during the first trial. His story was supported at the second trial by a young witness named Sam Barnett, who said he was riding as a passenger in the left back seat of a car traveling on Winton Way which crossed the Santa Pe tracks some distance behind the defendant’s car. Barnett testified that when he looked to his left down Santa Pe Avenue he saw the taillights of the Clark car and two sets of headlights approaching the Clark car in an opposite direction along Santa Pe Avenue. He then saw the car with taillights collide with the car whose headlights were in the left or westerly lane. The third car swerved around the taillights and turned off Santa Pe Avenue into Park Avenue, sideswiping a tree at the corner; he said he recognized the latter vehicle as belonging to one Koehn. Sam Barnett was the only witness, besides the defendant, who testified to the presence of a third automobile; however, Mrs. Clark, wife of the defendant, said that the defendant had mentioned something of the sort to her at the hospital shortly after the collision.
The jury evidently did not believe the story about the third car that was vouched for by the defendant, and there are many elements of evidence which run counter to the defendant’s contention. Por example, Buddy Mancebo, who was driving the automobile in which Barnett rode as a passenger, testified that when his car reached the Santa Pe Railway tracks he could see the flares on the road where the accident had happened and saw no moving cars; in other words, his testimony was to the effect that he reached the scene of the collision a considerable time after it occurred, and if his testimony were believed, obviously Barnett’s evidence was untruthful.
The occupants of the pickup truck with which the defendant collided testified that there was no third car at the scene of the accident, and the two Koehns gave evidence that their automobile was not involved and was nowhere near the area when the collision occurred. Furthermore, the witness Barnett had previously stated that he had not witnessed the accident. There was an attempt on the part of defendant to show through the testimony of an expert witness that certain paint
removed from his right rear fender months after the accident was left there by the collision with the Koehn automobile. However, the expert testified that there was no lacquer found in these samples of paint removed from the Clark car, and there was evidence that the primer used on the Koehn ear contained lacquer as part of its composition. There was testimony that when appellant’s automobile was towed into the junk yard immediately after the collision, there were no paint smears or other indications of damage on the right rear fender. It is not surprising therefore that the jury believed that the marks that were on the fender at the time of the trial were not on it immediately after the accident and that the story about the presence of the Koehn car as a causative factor of the collision was not true.
There was also evidence that sometime after the accident appellant met Mr. Mininger and then said that he felt he was to blame for what had occurred, that he was willing to pay for any damage suffered, including all hospital expenses; also, that he was guilty and that he would admit the reckless driving charge, but he did not feel that he was drunk. At that time he made no claim that a third vehicle was involved in the accident.
However, this court does not purport to pass on the evidence as no claim is made by the appellant that it is insufficient to support the verdict.
In order to prove felony drunk driving, the People had the burden of establishing beyond all reasonable doubt the following elements of the offense: (1) that the defendant drove a vehicle on the public highway; (2) that he was then and there under the influence of intoxicating liquor; (3) that he did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle; and (4) that such act or neglect proximately caused bodily injury to a person other than himself.
The first, second and fourth elements of the offense were clearly proven, and there is no contention by the appellant to the contrary. The appeal rests solely on the claim that an offered instruction relative to the third element of the offense was not given and that it resulted in a miscarriage of justice insofar as the defendant was concerned.
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CONLEY, P. J.
The defendant, Lyle Clark, was charged in the information with the crime of "drunk driving with bodily injury” in violation of section 23101 of the California Vehicle Code, in that on or about the 22d day of April, 1961, in the County of Merced, he did "... wilfully and unlawfully, while under the influence of intoxicating liquor drive a motor vehicle upon a public highway and while driving said vehicle did an act forbidden by law, and neglected a duty imposed by law in driving said vehicle, which act and neglect proximately caused bodily injury to Carolyn Geisbrecht.”
The first trial of the defendant resulted in a jury disagreement. On the second trial, which lasted five days, the jury brought in a verdict of guilty. The defendant thereafter moved for a new trial, which was denied, and the court granted him probation for the term of three years, the first six months to be served in the county jail.
The appeal is ". . . from the judgment on verdict of conviction entered thereon . . . and from the order denying new trial. ...” Although there is actually no final judgment of conviction in the case, section 1237, subdivision 1, of the Penal Code provides that an order granting probation is deemed to be a final judgment for the purpose of appeal, and we so consider it.
In order to make clear the circumstances applying to the claim of error, it is necessary briefly to review the evidence in the ease.
On April 22, 1961, the defendant was driving a 1953 Studebaker automobile at the rate of about 30 miles per hour on Winton Way near Winton, California. He crossed the Santa Pe railroad tracks, made a left turn onto Santa Pe Avenue and drove parallel to the tracks in a general northwesterly direction on that avenue. A 1951 G.M.C. pickup truck was approaching Clark from the opposite direction. It was driven by Larry Mininger, a teenager, who had three other young people riding in his cab, including Carolyn Geisbrecht. The pickup truck was in its righthand lane, going about 30 miles an hour. Defendant’s Studebaker crossed over the white line and hit the left front portion of the truck. The impact occurred about 3 feet from the center line of that road. The tire marks from defendant’s car started in his own right lane, swerved into his left lane, and turned back into his right lane. Carolyn Geisbrecht, who was in the pickup, was injured. The defendant himself received a cut on the head and suffered a brain concussion resulting in retrograde amnesia.
After the close of the first trial, defendant claimed that increased memory returned to him and that he could recall a second car approaching him in his own right lane just before the collision. He said that he swerved to his left to miss this third car and came into collision with the Mininger motor vehicle; the defendant did not mention this alleged fact during the first trial. His story was supported at the second trial by a young witness named Sam Barnett, who said he was riding as a passenger in the left back seat of a car traveling on Winton Way which crossed the Santa Pe tracks some distance behind the defendant’s car. Barnett testified that when he looked to his left down Santa Pe Avenue he saw the taillights of the Clark car and two sets of headlights approaching the Clark car in an opposite direction along Santa Pe Avenue. He then saw the car with taillights collide with the car whose headlights were in the left or westerly lane. The third car swerved around the taillights and turned off Santa Pe Avenue into Park Avenue, sideswiping a tree at the corner; he said he recognized the latter vehicle as belonging to one Koehn. Sam Barnett was the only witness, besides the defendant, who testified to the presence of a third automobile; however, Mrs. Clark, wife of the defendant, said that the defendant had mentioned something of the sort to her at the hospital shortly after the collision.
The jury evidently did not believe the story about the third car that was vouched for by the defendant, and there are many elements of evidence which run counter to the defendant’s contention. Por example, Buddy Mancebo, who was driving the automobile in which Barnett rode as a passenger, testified that when his car reached the Santa Pe Railway tracks he could see the flares on the road where the accident had happened and saw no moving cars; in other words, his testimony was to the effect that he reached the scene of the collision a considerable time after it occurred, and if his testimony were believed, obviously Barnett’s evidence was untruthful.
The occupants of the pickup truck with which the defendant collided testified that there was no third car at the scene of the accident, and the two Koehns gave evidence that their automobile was not involved and was nowhere near the area when the collision occurred. Furthermore, the witness Barnett had previously stated that he had not witnessed the accident. There was an attempt on the part of defendant to show through the testimony of an expert witness that certain paint
removed from his right rear fender months after the accident was left there by the collision with the Koehn automobile. However, the expert testified that there was no lacquer found in these samples of paint removed from the Clark car, and there was evidence that the primer used on the Koehn ear contained lacquer as part of its composition. There was testimony that when appellant’s automobile was towed into the junk yard immediately after the collision, there were no paint smears or other indications of damage on the right rear fender. It is not surprising therefore that the jury believed that the marks that were on the fender at the time of the trial were not on it immediately after the accident and that the story about the presence of the Koehn car as a causative factor of the collision was not true.
There was also evidence that sometime after the accident appellant met Mr. Mininger and then said that he felt he was to blame for what had occurred, that he was willing to pay for any damage suffered, including all hospital expenses; also, that he was guilty and that he would admit the reckless driving charge, but he did not feel that he was drunk. At that time he made no claim that a third vehicle was involved in the accident.
However, this court does not purport to pass on the evidence as no claim is made by the appellant that it is insufficient to support the verdict.
In order to prove felony drunk driving, the People had the burden of establishing beyond all reasonable doubt the following elements of the offense: (1) that the defendant drove a vehicle on the public highway; (2) that he was then and there under the influence of intoxicating liquor; (3) that he did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle; and (4) that such act or neglect proximately caused bodily injury to a person other than himself.
The first, second and fourth elements of the offense were clearly proven, and there is no contention by the appellant to the contrary. The appeal rests solely on the claim that an offered instruction relative to the third element of the offense was not given and that it resulted in a miscarriage of justice insofar as the defendant was concerned.
The appellant offered the following instruction which was refused: “While a person is obligated under the law of this State, to drive a motor vehicle on the right half of a roadway, nevertheless, a motorist is not guilty of any
wrongful act or negligence, as a matter of law, merely because he shifts to the left side of the highway, when it appears that such action is the safest thing to do under the stress of an emergency, or, when the driver is suddenly, and without fault on his part, confronted with such an emergency.”
The Attorney General contends, in opposition to the claim of reversible error on the part of defendant, that the instructions of the court covered this matter and that they were sufficient. It is true that: “A defendant is entitled to instructions on his theory of the case as disclosed by the evidence no matter how weak such evidence may be and, even though it may not be of a character to inspire belief and however incredible the evidence may be, the defendant is entitled to an instruction based upon the hypothesis that it is entirely true
(People
v.
Carmen,
36 Cal.2d 768 [228 P.2d 281];
People
v.
Carnine,
41 Cal.2d 384 [260 P.2d 16]).” (Fricke, California Criminal Procedure (5th ed. 1959), Instructions, p. 317.)
In 48 California Jurisprudence 2d, Trial, section 467, page 479, it is said: “The court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.”
The defense attempted to show that the reason for Clark’s shifting to his left side of Santa Fe Avenue was to avoid a collision with a third car supposedly being driven toward defendant on its wrong side of the road.
The court gave the following instruction:
“Section 21650 [
] of the California Vehicle Code, reads as follows:
“ ‘Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
“ ‘(a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.
“ ‘ (b) When placing a vehicle in a lawful position for, and when the vehicle is lawfully making, a left turn.
“ ‘(c) When the right half of a roadway is closed to traffic under construction or repair.
“ ‘ (d) Upon a roadway designated and signposted for one-way traffic. ’ ’ ’
Appellant claims that this instruction enumerated exceptions which had no foundation in the evidence and that in
addition to these four exceptions California law recognizes the further exception
(Jolley
v.
Clemens,
28 Cal.App.2d 55, 67-68 [82 P.2d 51]) that when a driver is suddenly and without fault on his part confronted with an emergency, he may swerve to the opposite lane of the highway without being guilty of an act forbidden by law if this is, or appears to be, the safest course to follow under the circumstances and is what a reasonably prudent person would do under the circumstances.
Appellant’s contention that the failure to give the instruction offered by him constituted prejudicial error is without merit, because another instruction given by the court covered substantially the same ground. The trial judge gave the following instruction:
“A
person who, without negligence on his part is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by an ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events, it should appear that a different course would have been better and safer.”
“The ice shaving machine in the instant case is one whose dangerous aspects are obvious. It was operated by a gasoline motor with such power and force as to shave the ice and to throw it aside, when the machine was in operation. It appears from the photograph of it in evidence that it consists, among other things, of a chain drive, which obviously is noisy, and the plaintiff testified that he had watched it for a period of at least an hour prior to the accident. It would seem that the danger thus involved is an obvious one and one of which the defendant has no duty to warn. In fact, it is difficult to conceive of what the defendant’s agents might say which would be any more impressive warning than the machine itself in operation.”
In
Jolley
v.
Clemens, supra,
28 Cal.App.2d 55, 68, it is said, quoting from
Uhl
v.
Fertig,
56 Cal.App. 718, 724 [206 P. 467] :
“ ‘
“The rule, judicially stated, is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.” (20 Ruling Case Law, p. 29.) ’ ”
The instruction above quoted is the standard imminent peril instruction, CALJIC No. 315, page 270. In
People
v.
Boulware,
41 Cal.App.2d 268 [106 P.2d 436], the record showed that an intoxicated driver testified that he had observed a truck coming directly toward him and that because of that fact he swerved and hit a car. At the trial, he requested an instruction on imminent peril; such instruction was refused; the court held the appellant’s contention of prejudicial error was tenable and reversed the judgment. The defendant was
being tried for unlawfully driving an automobile while under the influence of intoxicating liquor and causing bodily injury
; the court said that if defendant’s testimony were believed by the jury, he acted as a reasonably prudent person in swerving his automobile and was entitled to have an instruction read to the jury upon the doctrine of imminent peril.
“The instruction requested by defendant correctly stated the law
apropos
to defendant’s theory of the reason for the accident and, since no other instruction on the subject was given, it was prejudicial error for the trial judge to fail to give the requested instruction or an instruction embodying the principles of law stated therein.”
(People
v.
Boulware, supra,
268, 270.)
We hold that the charge to the jury was fair and sufficient and that the refusal of the instruction offered by the defendant did not constitute error in view of the instructions actually given by the court.
The judgment and order denying the motion for a new trial are affirmed.
Brown, J., and Stone, J., concurred.